[House Report 114-821]
[From the U.S. Government Publishing Office]


114th Congress   }                                     {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                     {       114-821

======================================================================



 
  PECHANGA BAND OF LUISENO MISSION INDIANS WATER RIGHTS SETTLEMENT ACT

                                _______
                                

 November 14, 2016.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 5984]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 5984) to authorize the Pechanga Band of Luiseno 
Mission Indians Water Rights Settlement, and for other 
purposes, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                          PURPOSE OF THE BILL

    The purpose of H.R. 5984 is to authorize the Pechanga Band 
of Luiseno Mission Indians Water Rights Settlement.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 5984 helps bring finality to decades of litigation and 
uncertainty involving the Pechanga Band of Luiseno Mission 
Indians, local water districts in southern California and the 
United States. The bill is intended to resolve Indian water 
rights claims and their associated uncertainty while 
representing a net benefit to the American taxpayer.
    The Pechanga Band's claims stem from longstanding legal 
precedent. Specifically, the 1908 Supreme Court decision in 
Winters v. United States (207 U.S. 564 (1908)) held that the 
federal government implicitly reserved water rights sufficient 
to fulfill the purposes of an Indian reservation. In 1951, the 
United States initiated the United States v. Fallbrook Public 
Utility District et al. litigation to protect the federal water 
rights of the United States in the Santa Margarita River 
watershed (Civ. No. 3:51-cv-01247 (S.D.C.A.)(Apr. 6, 1966)). In 
1958, the Fallbrook litigation was expanded to include claims 
for three Indian tribes within the watershed--the Pechanga, 
Ramona Band of Cahuilla Indians and the Cahuilla Band of 
Indians. In 1963, the Court issued an order affirming that each 
of the three Indian tribes has reserved rights to surface and 
groundwater in the watershed. The judgment, however, did not 
quantify the tribe's water rights. Instead, all three tribes 
have a ``decreed'' federally reserved water right.
    The Pechanga Band subsequently entered into negotiations 
with the watershed's primary water users, including the Rancho 
California Water District (RCWD) and the Eastern Municipal 
Water District (EMWD). These negotiations resulted in two 
agreements: the Groundwater Management Agreement between the 
Band and RCWD in 2006; and the Recycled Water Agreement between 
EMWD and the Band in 2007. While these agreements addressed a 
number of disputes, the negotiations did not address the 
broader scope of the Band's overall water rights or settle any 
claims related to the Fallbrook decree.
    In March 2008, the Pechanga requested that the Secretary of 
the Interior appoint a Federal Negotiating Team to seek 
settlement of its water right claims vis-a-vis the United 
States and non-federal third parties. The Secretary appointed a 
Federal Negotiating Team in August 2008. A settlement agreement 
and other third-party agreements were reached on April 8, 2016, 
between the Band, the United States and the RCWD.
    This bill is the result of a process aimed at improving 
transparency and determining the appropriate amount of federal 
funding in these types of settlements. Historically, there have 
been questions over the level of how much or whether specific 
settlements should receive federal funding and whether there 
was a ``net benefit'' to the American taxpayer in settling 
claims. In some cases, prior Administrations that have 
negotiated these settlements did not adequately answer these 
questions. To help facilitate answers, House Natural Resources 
Committee Chairman Rob Bishop sent a letter in February 2015 to 
Secretary of the Interior Sally Jewell and former Attorney 
General Eric Holder outlining a process for the consideration 
of future Indian water rights legislation in the House. The 
process requires the Administration to convey support for a 
specific settlement, forward the settlement and the proposed 
authorizing legislation with specific spending levels, and list 
the claims being resolved. In addition, the letter requests 
that the Administration specifically affirm that a settlement 
meets longstanding criteria and procedures requiring that the 
``total cost of a settlement to all parties should not exceed 
the value of the existing claims as calculated by the Federal 
Government.'' In response, the Administration transmitted two 
letters (May 17, 2016 and June 22, 2016) and the proposed 
``Pechanga Band of Luiseno compared to the consequences and 
costs of not settling the litigation related to the Tribes' 
water rights claims.''
    According to the May 17, 2016, letter, the Settlement Act 
recognizes and establishes a tribal water right for the Band of 
up to 4,994 acre feet per year, and settles all of the Band's 
water rights claims in the Santa Margarita River watershed. In 
return, the Tribe agrees to waive all claims against the U.S. 
related to water rights in, or water of, the Santa Margarita 
River watershed. The Tribe can receive up to $28.5 million 
(with approximately $4 million in adjustments related to future 
construction costs, according to the Congressional Budget 
Office) in federal funding to construct infrastructure 
necessary to develop these water rights. H.R. 5984 approves, 
ratifies and brings this Settlement Agreement to fruition while 
also relieving the federal government and American taxpayer 
from some future federal liability.

                SECTION-BY-SECTION ANALYSIS OF THE BILL

Section 1. Short title; Table of contents

    This section establishes the short title of the bill as the 
``Pechanga Band of Luiseno Mission Indians Water Rights 
Settlement Act'' and provides a table of contents.

Section 2. Purposes

    This section states that the purpose of this Act is to 
achieve a final settlement of claims in the Santa Margarita 
River watershed; achieve final settlement of certain claims by 
the Band and allottees against the United States; authorize, 
ratify and confirm the Settlement Agreement; authorizes the 
Secretary of the Interior to implement the Settlement 
Agreement; and authorize necessary funds to implement the 
Settlement Agreement and the Act.

Section 3. Definitions

    This section defines key terms in the Act.

Section 4. Approval of Pechanga Settlement Agreement

    This section authorizes, ratifies and confirms the Pechanga 
Settlement Agreement entered into by the Band, the RCWD and the 
United States. The section directs the Secretary of the 
Interior to execute the Settlement Agreement, and stipulates 
that the Settlement Agreement does not constitute a federal 
action under the National Environmental Policy Act of 1969.

Section 5. Tribal water right

    This section confirms a tribal water right of up to 4,994 
acre-feet of water per year that, under normal conditions, is 
physically available on the Reservation and requires the tribal 
water right to be held in trust by the United States on behalf 
of the Band and the allottees. In addition, the Settlement 
Agreement authorizes the allottees to lease their lands 
together with any water right. The section also requires the 
Band to enact a Pechanga Water Code that governs the storage, 
recovery and use of the tribal water right, subject to the 
Department of the Interior's approval.

Section 6. Satisfaction of claims

    This section confirms that the benefits provided to the 
Band and allottees under the Settlement Agreement are in 
complete replacement of, complete substitution for, and full 
satisfaction of all claims against the United States.

Section 7. Waiver of claims

    This section directs the Band and the United States (acting 
in its capacity as trustee for the Band) to waive all claims 
for water rights within the watershed; waives specified claims 
against the RCWD; and authorizes the waiver of claims by the 
Band against the United States regarding specified water rights 
and damages.

Section 8. Water facilities

    This section authorizes the Secretary to provide funds for 
the construction of a storage pond and for the construction of 
other infrastructure necessary for various other agreements 
within the Settlement Agreement.

Section 9. Pechanga Settlement Fund

    This section establishes a Pechanga Settlement Fund in the 
United States Treasury. This Fund includes an authorization of 
$28.5 million for four different sub-accounts listed in section 
11 of the bill.

Section 10. Miscellaneous provisions

    This section contains a number of miscellaneous provisions 
including the affirmation that nothing in this Act waives the 
sovereign immunity of the United States. In addition, nothing 
in the Settlement Act will adversely affect any tribes other 
than the Band, and the United States shall not submit any claim 
for reimbursement for carrying out this Act and the Settlement 
Agreement.

Section 11. Authorization of appropriations

    This section authorizes federal appropriations for the 
Pechanga Recycled Water Infrastructure Account; Pechanga ESAA 
Delivery Capacity Account; Pechanga Water Fund Account; and the 
Pechanga Water Quality Account.

Section 12. Expiration on failure of enforceability date

    This section voids this Act no later than May 1, 2021, or 
the day after the later date agreed to by the Band and the 
Secretary if the Secretary does not publish applicable findings 
by April 30, 2021, or the alternative date. All appropriations 
and unexpended amounts will be returned to the general fund of 
the Treasury.

Section 13. Antideficiency

    This section states that the United States will not be 
liable for any failure to carry out the Act if adequate 
appropriations are not provided to carry out this Act.

                            COMMITTEE ACTION

    H.R. 5984 was introduced on September 9, 2016, by 
Congressman Ken Calvert (R-CA). The bill was referred to the 
Committee on Natural Resources. Previously, on June 23, 2016, 
the Subcommittee on Water, Power and Oceans held a hearing on a 
discussion draft version of the bill. On September 21, 2016, 
the Natural Resources Committee met to consider the bill. No 
amendments were offered, and the bill was ordered favorably 
reported to the House of Representatives by unanimous consent 
on September 22, 2016.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the enclosed cost estimate for 
the bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 31, 2016.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5984, the Pechanga 
Band of Luiseno Mission Indians Water Rights Settlement Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 5984--Pechanga Band of Luiseno Mission Indians Water Rights 
        Settlement Act

    Summary: H.R. 5984 would ratify the Pechanga Settlement 
Agreement among the Pechanga Band of Luiseno Mission Indians in 
California, the federal government, and local water districts. 
The legislation also would establish the Pechanga Settlement 
Fund to pay for the development and maintenance of water 
infrastructure for the tribe and would authorize the 
appropriation of funds for those purposes.
    CBO estimates that enacting H.R. 5984 would cost $33 
million over the 2017-2021 period, assuming appropriation of 
the necessary amounts. Enacting H.R. 5984 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2027.
    H.R. 5984 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) because it would 
require the tribe to enact a tribal water code. CBO estimates 
that the cost of the mandate would be small and well below the 
threshold established in UMRA for intergovernmental mandates 
($77 million in 2016, adjusted annually for inflation).
    The bill contains no private-sector mandates as defined in 
UMRA.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of H.R. 5984 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development) and 300 (natural resources 
and environment).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                              --------------------------------------------------
                                                                2017    2018    2019    2020    2021   2017-2021
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level................................      33       0       0       0       0        33
Estimated Outlays............................................      33       0       0       0       0        33
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: CBO assumes that H.R. 5984 will be 
enacted before the end of calendar year 2016. The legislation 
would ratify the Pechanga Settlement Agreement among the tribe, 
the federal government, and the Rancho California and Eastern 
Municipal water districts in Riverside County, California.
    H.R. 5984 would establish the Pechanga Settlement Fund and 
authorize the appropriation of about $3 million to be deposited 
into the fund to construct a storage pond. The bill also would 
authorize the appropriation of about $26 million plus an 
adjustment for the increase in construction costs over the 
2009-2017 period to build interim and permanent capacity for 
water storage, and for other purposes. CBO estimates that the 
adjustment for increases in construction costs would be about 
$4 million. Thus, in total the bill would authorize the 
appropriation of $33 million to be deposited into the 
settlement fund.
    Payments to certain tribal trust funds that are held and 
managed in a fiduciary capacity by the federal government on 
behalf of Indian tribes are treated as payments to a nonfederal 
entity. As a result, CBO expects that the entire amount 
deposited into this trust fund would be recorded as budget 
authority and outlays at the time of the deposit. The Secretary 
of the Interior would be required to invest the funds in 
government securities until those funds are expended by the 
tribe. Those subsequent expenditures would not be considered 
budgetary transactions.
    Pay-As-You-Go considerations: None
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting the legislation would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    Estimated impact on State, Local, and Tribal Governments: 
H.R. 5984 would require the tribe to enact water policies that 
would govern tribal water rights as detailed in the agreement. 
That requirement would be an intergovernmental mandate as 
defined in UMRA because it would place a statutory requirement 
on the tribe that is separate from provisions of the agreement. 
CBO estimates that the cost of the mandate would be small and 
well below the threshold established in UMRA for 
intergovernmental mandates ($77 million in 2016, adjusted 
annually for inflation).
    Other provisions of the bill would benefit the tribe. Any 
costs to the tribe from those provisions would be incurred 
voluntarily as a result of entering into the settlement 
agreement.
    Estimated impact on the private sector: The bill contains 
no private-sector mandates as defined in UMRA.
    Previous CBO estimate: On July 5, 2016, CBO transmitted a 
cost estimate for S. 1983, the Pechanga Band of Luiseno Mission 
Indians Water Rights Settlement Act, as ordered reported by the 
Senate Committee on Indian Affairs on February 3, 2016. The two 
pieces of legislation are similar and CBO's estimates of their 
budgetary effects are the same.
    Estimate prepared by: Federal Costs: Robert Reese; Impact 
on State, Local, and Tribal Governments: Rachel Austin; Impact 
on the Private Sector: Amy Petz.
    Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to authorize the Pechanga Band of 
Luiseno Mission Indians Water Rights Settlement.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                       COMPLIANCE WITH H. RES. 5

    Directed Rule Making. The Chairman does not believe that 
this bill directs any executive branch official to conduct any 
specific rule-making proceedings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes to existing 
law.

                                  [all]